Tuesday, May 29, 2012Last Update: 3:47 PM PT

No Constitutional Issue in Shared Autopsy Photos

(CN) - Despite a clear constitutional right to control death images of relatives, a district attorney is not liable for sending an autopsy photograph to the press, the 9th Circuit ruled Tuesday. In the first decision of its kind, the federal appeals court in San Francisco found that "the common law right to non-interference with a family's remembrance of a decedent is so ingrained in our traditions that it is constitutionally protected." Phillip Buell died from a head injury in 1983 when he was just 2 years old. Kenneth Marsh, who had been dating the child's mother at the time, was eventually charged with and convicted of second-degree murder. Marsh claimed that Buell fell off the couch and landed on the fireplace hearth. Some 20 years later, however, the San Diego Superior Court set aside the conviction and released Marsh. Marsh then filed suit against San Diego County and the medical experts who had autopsied Buell. The original prosecutor, San Diego Deputy District Attorney Jay Coulter, testified that he had photocopied 16 autopsy photographs of Buell to keep as a "memento," and that he sent one photograph to a newspaper and a television station along with an article titled "What Really Happened to Phillip Buell?" Buell's mother, Brenda Marsh, then filed a suit of her own, claiming that Coulter and the county of San Diego violated her due-process rights under the 14th Amendment, as well as California law, by copying and sharing her son's autopsy photographs. A federal judge disagreed and granted summary judgment to the defendants. While a three-judge panel of the 9th Circuit affirmed unanimously Tuesday, the ruling reads more like a reversal. The panel found that Brenda Marsh had a clear right to control her son's death images, but since that right was not clearly established when Coulter released the photographs, he has qualified immunity. "Marsh claims that when she learned that Coulter sent her son's autopsy photograph to the press, she was 'horrified; and suffered severe emotional distress, fearing the day that she would go on the Internet and find her son's hideous autopsy photos displayed there,'" wrote Chief Judge Alex Kozinski for the Irvine-base court. "Marsh's fear is not unreasonable given the viral nature of the Internet, where she might easily stumble upon photographs of her dead son on news websites, blogs or social media websites. This intrusion into the grief of a mother over her dead son-without any legitimate governmental purpose-'shocks the conscience' and therefore violates Marsh's substantive due process right." Kozinski added: "The long-standing tradition of respecting family members' privacy in death images partakes of both types of privacy interests protected by the Fourteenth Amendment. First, the publication of death images interferes with 'the individual interest in avoiding disclosure of personal matters . . . .' Few things are more personal than the graphic details of a close family member's tragic death. Images of the body usually reveal a great deal about the manner of death and the decedent's suffering during his final moments-all matters of private grief not generally shared with the world at large." But such arguments will only help the plaintiff in the next case, as Coulter can't be faulted "for failing to anticipate our ruling," the panel found. "As already noted, this is the first case to address the federal privacy interest in death images," Kozinski wrote. "While we believe the right is sufficiently grounded in federal law, we can't fault a state actor for failing to anticipate our ruling. Because it wouldn't have been 'clear to a reasonable officer that his conduct was unlawful in the situation he confronted,' Coutler is entitled to qualified immunity." Assistant County Counsel Deborah McCarthy, who argued for the county of San Diego, did not return a request for comment. Paul Leehey, of Fallbrook, Calif., represented Brenda Marsh. Another of Marsh's attorneys, Donnie Cox, told Courthouse News Service that the decision was something of a victory. "It's like you won the battle and lost the war," Cox said in an interview. "I promise you that Mrs. Marsh will feel vindicated and be appreciative that no other mother will have to be put through this sort of mess again. This vindicates the position that we took all along that her constitutional rights were violated." San Diego media interest in the case has been high over the years, Cox said. The Oceanside, Calif., attorney says it was clear to him all along that Coulter released the photo to try and justify the prosecution of Kenneth Marsh, who spent 20 years in jail rather than admit to a crime he did not commit. "This will be the first in a long line of cases," Cox said. "People will be on notice now that when they are irresponsible, as Mr. Coulter was, and simply throw the death images of children out there, they will be held responsible."